Overview of DUI and the Arizona Department of
If you find yourself arrested
for Driving Under the Influence of Alcohol (DUI) in the State of Arizona ,
and you have submitted to a breath, blood, or urine test, (Implied
Consent) and the results
of the test reveals a blood/breath alcohol result of .08% or higher, or
you have refused these tests, you can expect to be involved in two
separate legal proceedings.
These proceedings consist of
proceeding dealing with the merits of your DUI case in either a City or
Justice Court in Arizona; and
A “civil” proceeding dealing with the
Department of Motor Vehicles (MVD) and the likely suspension of your
driver license or privilege if your are from out of state.
It is important to note these
two proceedings are mutually exclusive. They are not inter-dependent to
each other. The outcome of one will not affect the other. You could lose
the civil driver license suspension proceeding, and win your criminal DUI
matter either through a dismissal or not guilty verdict. The reverse is
also true. You could also win both matters or lose both matters. How
the the MVD driver license hearing is handled is extremely important.
The “Criminal” Proceeding
- Your DUI arrest (A.R.S.
§ 28-1381) begins your “criminal” proceeding. Generally, this is pending
now or is possibly resolved in a City or County Justice Court. The
consequences of this proceeding -- plea of guilty, or a verdict of guilty
following a jury or bench trial -- could result in mandatory jail time,
fines, fees and assessments, supervised or unsupervised probation, as well
as a criminal record.
Proceeding Regarding Your Driver License
- The civil proceeding
is a non criminal proceeding before a administrative hearing officer at
the Department of Motor Vehicles, Driver License Division. This scope of
this proceeding deals with a possible suspension of your driver’s license,
or if from out of state, your privilege to drive in Arizona (A.R.S. §
28-1385; A.R.S. § 28-1321).
- This proceeding is
initiated by the arresting police officer by serving you with a “Notice of
Suspension”. If you have been arrested in Arizona for DUI and you take a
breath, blood or urine test, and the results measured a alcohol
concentration of .08% or more within 2 hours of driving, or you refuse to
take the blood, breath or other chemical test, the arresting police will
serve you with a 90 day driver license suspension notice, or in the case
of refusal, a 12 month driver license or driving privilege suspension.
This notice is contained on the “Admin Per Se/Implied Consent” form. The
police should give you two copies of this form, one yellow and one
- If your test results
indicate a result of .08% or higher, the police will seize your Arizona
driver license, and issue you a temporary license which is valid for 15
days from the date the police served you with the notice, or if you
request a hearing within the 15 days window, until the hearing is
conducted and the outcome determined. Since the police have confiscated
your driver license, the yellow “Implied Consent/Admin Per Se” form
is your temporary driver license.
- If you are from out of
state, the police cannot seize your out of state driver license. However,
they will serve you with a notice of suspension of your privilege to drive
in Arizona. The suspension will take effect 15 days after service unless
you request a hearing within the 15 days. If a hearing is requested your
privilege to drive in Arizona will not be suspended until the hearing is
conducted and the outcome determined.
- If you “refused” to
take the breath, blood or urine test, the police will serve you a notice
of a 12 month suspension of your driver license, or privilege to drive if
you are from out of state. This suspension becomes effective 15 days from
the date of service unless you request a hearing. If a hearing is
requested your driver license or privilege to drive in Arizona will not be
suspended until the hearing is conducted and the outcome determined.
An Important Note
- If your refused to
take a breath, blood or urine test, it is highly likely that the police
obtained a search warrant and obtained your blood anyway. If this is the
case, your driver license or privilege to drive will still be suspended
for 12 months even though the police obtained your blood through the use
of a search warrant.
How to Request A
- A request for hearing
must be submitted in writing to the Department of Motor Vehicles.
Generally, the pink copy of the “Admin Per Se/Implied Consent”
form, which should have been furnished by the police, is used to request
this hearing. It is important to fill out the information completely and
accurately on the back of the pink form. You must check the box indicating
you are requesting an Administrative Hearing and mail it to:
Arizona Department of Transportation
Executive Hearing Office
Mail Drop 507M
P.O. Box 2100
Phoenix, AZ. 85001-2100
within 15 days of service to you by the police. Do not select Summary
Review, this will not get you a hearing, but merely a review of the
paperwork submitted by the police to the hearing office.
Why Is This So Important
If you are a first offender
with no DUI convictions within the past five years, and you took a breath,
blood or other required test, and if you are planning to plead “Guilty” in
the criminal case, or you think a “Guilty” finding is likely, this
information is extremely important.
In the “Criminal” case, if you
plead guilty to the charge of DUI, or if you are found guilty by a jury or
the Court, you will be sentenced in accordance within the
present sentencing guidelines.
Further, the law requires the Court to notify the State that a DUI
conviction has been entered. (A.R.S. § 28-3001). When the State receives
that notification, your driver’s license will be suspended for ninety (90)
However, if you are a first
offender, and if you took the breath, blood or other required test, and if
you have been found “Guilty” in the criminal proceeding, or you feel that
such a result is likely, then you may wish to stipulate (agree) to a
suspension of your driver license prior to or at the MVD hearing.
What Are The Advantages of Agreeing to the
A stipulation to the
suspension will entitle you to a 60 day restricted driving permit
following a 30 day suspension. The suspension is still classified as a 90
day suspension. To obtain the restricted driving permit, you must apply
at a local MVD office following the first 30 days of the suspension.
A stipulation to the
suspension will generally resolve the “Civil” proceeding sooner and
oftentimes well before the resolution of your Criminal matter in court.
This is advantageous as you get the suspension over with sooner and under
less onerous circumstances.
A stipulation to the
suspension will generally result in no further suspension of your driver
license if you later plead or are found guilty of your DUI in court.
In the case of a stipulated
suspension from MVD, there will be no requirement that you post proof of
Financial Responsibility before your Arizona driver license or privilege
is reinstated. In some cases, it may be to your best interest to consider
a stipulated or voluntary suspension prior to or at the MVD hearing to
eliminate the later possibility of a suspension resulting from Court
action and the attendant Financial Responsibility obligations. This court
action would happen by “winning” your MVD matter and later losing your DUI
at trial or by guilty plea.
A stipulation to the
suspension will allow you to select the day you want your suspension to
begin, so long as the suspension start date is within 45 days of your MVD
hearing date. This allows flexibility in arranging transportation to
work or school during the initial 30 days of the suspension.
If you request a hearing and actually go through with it and lose, the
only difference between losing the hearing and stipulating/agreeing to the
suspension is that your will not be able to chose the day the suspension
begins. You should still be eligible for the 30 day driver license
suspension followed by the 60 day restricted driving permit.
What Are the Disadvantages of Agreeing to the
- If you stipulate or agree to the suspension, you
do not get a hearing with the administrative law judge. You do not get to
challenge the police officers or contest the evidence in the civil
hearing. Sometimes this hearing may be important to gather critical
evidence in your DUI case. However, this decision should not be made
without first discussing your DUI case and individual circumstances with an experienced DUI defense
What Are the Disadvantages of Having the
If you have the Administrative Hearing and win, and
later lose your DUI case, either through a plea or finding of guilty at
trial, MVD will suspend your driver license for 90 consecutive days.
There is no eligibility for a restricted driving permit following the
first 30 days of the suspension.
Further, if you are convicted either
through a plea or finding of guilty in court you will be required to
provide proof of financial responsibility (insurance) for three years (A.R.S.
§ 28-3319) by filing with the State of Arizona either a $40,000.00 cash
deposit, or Certificates of Deposit (CD’s) totaling $40,000.00 or a
Certificate of Insurance (SR22), (A.R.S. § 28-4077); (A.R.S. § 28-4084).
Financial Responsibility requirement could have significant cost
implications for you, depending upon your selection of acceptable
Financial Responsibility filings and/or your insurance carrier’s
Prior to or during the MVD
hearing, you may ask the administrative law judge any questions that you
may have concerning these suspensions and their effects, but remember that
the Judge cannot give you legal advice as to what you should do. The
administrative law judge works for the State of Arizona, and is not
necessarily there to help you.
In all instances, it is
important to understand your legal rights. Only a qualified and
experienced DUI defense attorney can explain these rights to you.